Conaway v. Eastern Associated Coal Corp.
| Decision Date | 09 December 1986 |
| Docket Number | No. 16969,16969 |
| Citation | 178 W.Va. 164,358 S.E.2d 423 |
| Court | West Virginia Supreme Court |
| Parties | Dorwin CONAWAY v. EASTERN ASSOCIATED COAL CORPORATION. |
Syllabus by the Court
1. Wrongful discharge is a tort action.
2. To successfully defend against a motion for summary judgment, the plaintiff must make some showing of fact which would support a prima facie case for his claim.
3. In order to make a prima facie case of employment discrimination under the West Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq. (1979), the plaintiff must offer proof of the following:
(1) That the plaintiff is a member of a protected class.
(2) That the employer made an adverse decision concerning the plaintiff.
(3) But for the plaintiff's protected status, the adverse decision would not have been made.
4. Syl. pt. 3, in part, Shepherdstown VFD v. W.Va. Human Rights Comm'n, 172 W.Va. 627, 309 S.E.2d 342 (1983).
Franklin D. Cleckley, Morgantown, Gregory T. Hinton, Fairmont, for appellant.
Roger A. Wolfe, Charleston, James B. Stoneking, Morgantown, for appellee.
This is an appeal from a summary judgment granted in favor of the appellee, Eastern Associated Coal Corporation, and against the appellant, Dorwin Conaway, by the Circuit Court of Monongalia County, West Virginia. Mr. Conaway, a former employee of Eastern, charged his former employer with age discrimination, wrongful discharge, and breach of contract. We agree with the trial court's action, and affirm.
Mr. Conaway was first employed by Eastern as a utility man in March, 1968, and became a foreman in 1969. In December, 1971, Conaway voluntarily resigned his position with Eastern and accepted a similar position with another company. However, he later returned to work for Eastern in September, 1972, as a section foreman in the Federal No. 2 Mine near Fairview, West Virginia. With the exception of a twenty-one month lay-off as a result of a back injury, Conaway continued to work for Eastern until his discharge in October, 1980.
Mr. Conaway was not a model employee. On numerous occasions noted in the record, Conaway was issued verbal or written notices for safety-related violations or refusing to obey orders from management. In his performance reviews, Conaway was given an overall acceptable rating, but the reports showed several shortcomings. He received an unacceptable rating for obeying safety regulations on a January 22, 1980, review. As to his work initiative, the report noted: As to his knowledge of the UMWA contract and company policy, the review noted that Conaway "tries to BS his way instead of using facts." Additionally, the review noted: Still, despite his shortcomings, in January Eastern felt Conaway was enough of an asset to keep him as an employee.
Later, an incident occurred which prompted Conaway's dismissal. At approximately 7:45 a.m. on Saturday, October 18, 1980, Conaway reported for work at the Federal No. 2 Mine. Conaway expected that he would be required to "fire boss," since a notice of this duty had been posted on the mine bulletin board on Thursday or Friday of that week. Fire bossing involves checking the mine for safety violations and monitoring methane gas levels in the mine. It is mandated by both Federal and State law.
Upon his arrival at the mine, Conaway was instructed orally by Charles Buchanan, the general assistant mine foreman, to oversee the work of a two-man track bolting crew. Conaway accompanied the track bolting crew into the mine. Later that morning, Bernard Stump, another mine foreman, advised Conaway that he was to fire boss the mine. Conaway refused.
Eastern asserts that Mr. Stump returned and delivered an unsigned note to Conaway which indicated that Conaway was to fire boss. This is disputed by Conaway, who claims never to have seen a note. When the shift ended, Mr. Buchanan gave Conaway a written note indicating that he had failed to obey an order. He was then given a formal notice of discharge and was told to report to the senior mine accountant.
Conaway appealed his discharge to the Eastern management personnel pursuant to the company labor policy governing the discipline of salaried employees. It was the consensus of the management, however, that, based upon Conaway's prior record and the October 18, 1980, incident, the discharge was proper.
In December, 1980, Conaway filed a discrimination complaint with the West Virginia Human Rights Commission against Eastern, charging age discrimination. On January 18, 1982, the West Virginia Human Rights Commission issued a probable cause determination against Eastern for age discrimination, and on March 31, 1983, the West Virginia Human Rights Commission issued Conaway a notice of a right to sue. Conaway then filed suit in the Circuit Court of Monongalia County, West Virginia, in June, 1983, alleging in an amended complaint four causes of action: (1) that he was discharged so as to prevent him from becoming eligible for benefits under Eastern's long-term disability benefits program; (2) that he was discharged in order to prevent his pension rights from vesting; (3) that his discharge was in violation of his employment contract with Eastern; and (4) that he was discriminated against because of his age.
Mr. Conaway claims that he was fired so that he would not become eligible for long-term disability benefits. This cause of action is basically one of wrongful discharge. Wrongful discharge is a tort action. See Harless v. First Nat'l Bank, 162 W.Va. 116, 124-25, 246 S.E.2d 270, 275 n. 5 (1978). The respondent contends, because Mr. Conaway waited over two years to file suit, this cause is barred because of the two-year statute of limitations in W.Va.Code § 55-2-12 (1981).
Mr. Conaway claims that the statute of limitations for this action should be tolled because his age discrimination action was pending before the Human Rights Commission. We disagree. A statute of limitations commences to run when the right to sue accrues. See syl. pt. 1, Jones v. Trustees of Bethany College, 177 W.Va. 168, 351 S.E.2d 183 (1986); Sansom v. Sansom, 148 W.Va. 603, 607, 137 S.E.2d 1, 4 (1964). With respect to the age discrimination claim alone, that cause of action did not accrue until March 31, 1983, when the West Virginia Human Rights Commission issued Mr. Conaway a notice of right to sue. All other causes of action accrued October 31, 1980, when Mr. Conaway's discharge was confirmed by the management at Eastern. The fact that Mr. Conaway's age discrimination claim was tolled during the period which he was proceeding before the Human Rights Commission does not act to toll the statute of limitations from running on his other causes of action.
Mr. Conaway further asserts that he was dismissed so his pension rights would not vest, in violation of the public policy of the State of West Virginia. This area is preempted by Federal ERISA law, see 29 U.S.C. § 1001 et seq. (1982), and such action is illegal under 29 U.S.C. § 1140 (1982). 1
Mr. Conaway, however, presented no evidence whatsoever to support this allegation. To successfully defend against a motion for summary judgment, the plaintiff must make some showing of fact which would support a prima facie case for his claim. See W.Va.R.Civ.P. 56(c). Mr. Conaway fails in this. Therefore, we hold that the trial court correctly dismissed this cause of action.
Mr. Conaway also argues that his employment was not "at will," but was governed by a contract. In syllabus point 6 of Cook v. Heck's, Inc., 176 W.Va. 368, 342 S.E.2d 453 (1986), we held that an employee handbook may form the basis for a unilateral contract. This rule has some application in this case. Although Mr. Conaway was not covered under the formal National Bituminous Coal Wage Agreement of 1978 because he was a foreman, he was covered by a statement of general policies which applied to all salaried employees.
This document, however, merely set out an appeal procedure for discharged employees:
Discharge: Discharge, for employees coming under this policy, must first be reviewed by the Industrial Relations Department and approved by the Vice President in charge of the department involved. Employees should be suspended pending this review period.
Discharge for such employees should be carefully considered by all concerned and such action taken only as a final recourse.
(Emphasis in original.) Mr. Conaway was given his appeal and he lost. The labor policy did not guarantee an outcome, just an appeal. Therefore, even if the labor policy is construed as a contract, Mr. Conaway alleged no facts which would show a violation of it.
The only cause of action left is Mr. Conaway's claim that he was discriminated against because...
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